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Ten Quirks of Eminent Domain Litigation for Landowners

November 19, 2012

Overview

Litigators are notorious for diving into areas of law that are new to them. "Litigation is litigation," they say as they wade into representations without testing the strength of the current. These three words, while sometimes accurate, will lead to disaster in certain areas of law.

Representing a landowner in an eminent domain lawsuit is questionable territory for the generalist litigator. Originating from the United States and Washington constitutions, an eminent domain practice is riddled with constitutional questions and quirky alterations to the common lawsuit. These eminent domain quirks can lead to mistakes for the inexperienced attorney from the very start of the suit and continue through trial.

As a law school refresher, the government cannot take private property for public use without paying the landowner just compensation. This concept comes from the Fifth Amendment of the U.S. Constitution, and Article I, Section 16 of the Washington Constitu­tion. A lawsuit arises when the government and the landowner cannot come to an agreement on what that just compensation is.

It is not uncommon for a landowner to turn to the litigator or transactional attorney who has helped them in the past. And so the landowner sends the pleadings to her trusted law firm. The firm has a strong litigation team and accepts the case. But the team's strength in other areas of litigation could lead attorneys into a false sense of confidence.

Here are only 10 of the many ways eminent domain suits diverge from common civil litigation.

The Nomenclature Is Different. Receiving an eminent domain lawsuit is much like falling through the rabbit hole. The opening pleading is not called a complaint. Instead the government's filing is a "petition."

An attorney new to condemnation may overlook another difference in that first pleading: The government is not the "plaintiff," but is the "petitioner," and the landowner is the "respondent." The pleading does not seem to be alleging anything and frequently barely mentions the property owner.

Dorothy is no longer in Kansas.

There Is No Answer. Even if an attorney catches on to the differences in terminology from the outset, that attorney will show his inexperience when he files an answer. In an action for eminent domain - also called condemnation - no answer is filed. The only response to the petition is a timely filed notice of appearance.

This makes sense, somewhat, in context of that vague and obtuse petition - there really are no allegations against the owner that require a response.

Trial Is Scheduled Sooner. A new eminent domain litigator will get a rude awakening with the case schedule in King County - the trial date is about eight months from the filing of the petition. This is a substantial change for civil litigators accustomed to the casual pace of traditional cases.

The case scheduling order will also look different - for instance, there will not be a date for the Disclosure of Possi­ble Primary and Additional Wit­nes­ses. On the schedule, a little after a month later, is something on there called a public use and necessity hearing.

Public Use and Necessity Hearings. Again, the central concept of eminent domain is that government cannot take private property for public use with paying just compensation. But what if the use the government is planning is not public? What if the government entity is taking the property for nefarious reasons?

The public use and necessity hearing is where the judge resolves these potential, but unusual, defects in the government's petition. The only issue to go to the jury is the amount of just compensation.

An attorney planning to challenge the government's right to condemn the property must act quickly to make his case to the judge.

The Government "Politely" Asks for Early Relief. After the public use and necessity hearing, the attorney can expect a letter from the government requesting possession and use of the property. There is not any other area of litigation where a party would send a letter asking the opposing party to give up the relief the suing party is seeking even before the trial. But that is the norm in eminent domain law.

The government cannot take private property without just compensation having first been paid, but it usually does not plan ahead enough to be able to wait for the trial date.

The Landowner Will Probably Want To Consent. Seems crazy doesn't it: Why would landowners voluntarily give up their property early just because the government sent a polite letter asking for it? But if the court has already decided in the public use and necessity hearing that the government can take the land, the government will eventually have a right to it.

Since the courts have decided that just compensation does not include attorney fees, the state created a carrot to encourage landowners to consent to possession and use by offering them a deal. A landowner who consents to giving up their property gets the chance of recovering attorney fees if at trial the owner beats the government's last written offer made 30 days before trial by 10% or more. If the landowner does not consent within 15 days, any chance of recovering attorney fees is lost.

On the bright side, the government will pay what it thinks the property is worth into the court registry and the landowner can obtain an order to release these funds in advance.

Be Prepared To Schedule a Day To Exchange Appraisals. By this point in the lawsuit, the only issue for the jury is going to be what just compensation is. This will be determined through appraisals.

A handy statute allows the parties to set a date to exchange appraisals. This ensures that the parties complete their discovery on time and with equal advantage between the parties. On a practical note, the government will often show its appraisal before the lawsuit is filed in an attempt to reach settlement early. That does not mean, however, that it won't change by the time of discovery.

Just Compensation Is a Hard Pill To Swallow. Preparing the evidence and legal theories for the case is made difficult by the fact that the courts have defined just compensation in a way that, frankly, just cannot be fair. Just compensation is what a willing buyer and a willing seller would pay for the property absent the compulsion to buy or to sell.

The problem with this is that most people don't choose to sell in a down economy. Most people choose not to sell when doing so would cause a business loss for them - relocations frequently do not pencil out. And speaking of pencils, a willing buyer doesn't care about the growth charts penciled onto the wall by the kitchen door of a family's home or the intentions the owners once had of marking their grandkids' growth on that same wall.

The things landowners most value about their property do not easily fit within the constraints of the law, and this can make client depositions and trial difficult.

What Do You Mean There Is No Burden of Proof Jury Instruction? Trial is about to start. The jury instructions are being drafted. What's this? There is no "burden of proof" jury instruction.

This may not seem like a big deal. But remember that judges frequently like to read their own instructions to the jury about the case, and typically reject the introductory instructions provided by counsel. The attorney wants to make sure that the burden is not unfairly put on the landowner. This also alters the order and the presentation of evidence.

The Jury May Visit Your Client's Property. Site visits with a jury are practically unheard of in most litigation, but quite common in eminent domain litigation. They are frequently requested by both the government and the property owner.

But if the property owner is not prepared for the possibility of a site visit, a granted motion in limine may put the owner in a difficult spot. The last thing the owner wants is a sink full of dirty dishes or to be mid-relocation when the jury visits the property.

All areas of litigation have tactical differences, interesting legal standards and things that make them unique. But condemnation is a different sort of litigation and attorneys should not take on the cases of landowners unless they can navigate the quirks of the litigation.

Jamila Johnson is a litigator (who handles condemnation cases) in the Seattle office of Schwabe, Williamson & Wyatt. She can be reached at 206-407-1555 or jajohnson@schwabe.com.